NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 611 OF 2012
[Arising out of Special Leave Petition (Crl.) No.6774 of 2011]
MYLA VENKATESWARLU … APPELLANT
Vs.
THE STATE OF ANDHRA PRADESH … RESPONDENTS
JUDGMENT
(SMT.) RANJANA PRAKASH DESAI, J.
1. Leave granted.
2. The challenge in this appeal, by special leave, is to the
judgment of a learned Single Judge of the Andhra Pradesh
High Court dismissing the criminal appeal filed by the
appellant questioning the correctness of the judgment and
order passed by the Ist Additional Sessions Judge, Guntur.
By the said judgment, the appellant (original accused 3) andtwo others viz. Myla Rambabu and Myla Muralikrishna
(original accused 1 and 2 respectively and for convenience,
referred to as “A1” and “A2” respectively) were convicted for
offences punishable under Section 8(c) read with Section 20(b)
(i) of the Narcotic Drugs and Psychotropic Substances Act,
1985, (for short, “the NDPS Act”) and sentenced to undergo
rigorous imprisonment for six months each and to pay a fine
of Rs.5,000/- each. In default of payment of fine, they were
directed to undergo simple imprisonment for six months each.
3. According to the prosecution, on 5/1/2001, PW-3 CI
Koteswara Rao on receiving reliable information about illegal
sale of Ganja at Koneru Bazar, Chenchupeta, Tenali,
proceeded to Koneru Bazar along with PW-1 PC Shaik Khasim,
PW-2 SI Nageswara Rao and one other constable. They
noticed the appellant, A1 and A2 sitting under a bridge. On
seeing them, the appellant, A1 and A2 tried to run away. PW-
3 CI Koteswara Rao and his team apprehended them. The
prosecution story further goes on to say that the appellant, A1
and A2 revealed their names. On questioning, they stated that
2they were carrying Ganja packets in their pockets. It is
further the case of the prosecution that PW-3 CI Koteswara
Rao asked them whether they wanted any other gazetted
officer for their search and seizure in addition to him to which
they replied that they did not want any other gazetted officer
and checking by the Circle Inspector of Police was sufficient.
In the search, five Ganja packets were recovered from A1, six
Ganja packets were recovered from A2 and four Ganja packets
were recovered from the appellant. A1, A2 and the appellant
are stated to have confessed to the crime. They were then put
under arrest. After completion of the investigation, they were
charged for the offence under Sections 8(c) read with Section
20(b)(i) of the NDPS Act. The appellant pleaded not guilty to
the charge. The evidence led by the prosecution found favour
with the trial court and it convicted the appellant, A1 and A2
as aforesaid. The appeal carried from the said judgment was
dismissed by the High Court. Hence, this appeal. It must be
noted here that A1 and A2 have not challenged the impugned
judgment and order and, hence, they are not before us.
34. We have heard, at some length, learned counsel
appearing for the appellant and learned counsel appearing for
the State of Andhra Pradesh, who has made a valiant effort to
support the impugned judgment and order.
5. Though several points were raised by learned counsel for
the appellant, it is not necessary for us to deal with them
because his contention that in this case there is a violation of
procedure contemplated under Section 50 of the NDPS Act
appeals to us. Section 50 of the NDPS Act, so far as it is
relevant, reads as under :
“50. Conditions under which search of persons
shall be conducted. (1) When any officer duly
authorised under section 42 is about to search any
person under the provisions of section 41, section 42
or section 43, he shall, if such person so requires,
take such person without unnecessary delay to
nearest Gazetted Officer of any of the departments
mentioned in section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain
the person until he can bring him before the Gazetted
Officer or the Magistrate referred to in sub-section (1).
(3) The Gazetted Officer or the Magistrate before
whom any such person is brought shall, if he sees no
reasonable ground for search, forthwith discharge
4the person but otherwise shall direct that search be
made.
(4) xxx xxx xxx”
A careful perusal of Section 50 indicates that when any
authorized officer is about to search any person under the
provisions of Sections 41, 42 or 43 of the NDPS Act, if such
person requires, he has to take such person, without
unnecessary delay, to the nearest gazetted officer of any of the
departments mentioned in Section 42 or to the nearest
Magistrate. In short, the suspect can insist that his search be
conducted before a gazetted officer or a Magistrate. Needless
to say that a suspect may insist on the presence of a gazetted
officer or a Magistrate so as to introduce transparency in the
search.
6. In State of Punjab v. Baldev Singh
1
the Constitution
Bench of this court was considering the question whether
compliance of Section 50 of the NDPS Act was mandatory and
1
(1999) 6 SCC 172
5if it is so, what is the effect in case of breach thereof. After
considering the relevant judgments on the point, the
Constitution Bench drew the following conclusions.
“(1) That when an empowered officer or a duly
authorised officer acting on prior information is about
to search a person, it is imperative for him to inform
the concerned person of his right under Sub-section
(1) of Section 50 of being taken to the nearest
Gazetted Officer or the nearest Magistrate for making
the search. However, such information may not
necessarily be in writing;
(2) That failure to inform the concerned person
about the existence of his right to be searched before
a Gazetted Officer or a Magistrate would cause
prejudice to an accused;
(3) That a search made, by an empowered officer,
on prior information, without informing the person of
his right that if he so requires, he shall be taken
before a Gazetted Officer or a Magistrate for search
and in case he so opts, failure to conduct his search
before a Gazetted Officer or a Magistrate, may not
vitiate the trial but would render the recovery of the
illicit article suspect and vitiate the conviction and
sentence of an accused, where the conviction has
been recorded only on the basis of the possession of
the illicit article, recovered from his person, during a
search conducted in violation of the provisions of
Section 50 of the Act;
xxx xxx xxx xxx
(5) That whether or not the safeguards provided in
Section 50 have been duly observed would have to
be determined by the Court on the basis of evidence
6led at the trial. Finding on that issue, one way or the
other, would be relevant for recording an order of
conviction or acquittal. Without giving an opportunity
to the prosecution to establish, at the trial, that the
provisions of Section 50, and particularly the
safeguards provided therein were duly complied
with, it would not be permissible to cut-short a
criminal trial;
(6) That in the context in which the protection has
been incorporated in Section 50 for the benefit of the
person intended to be searched, we do not express
any opinion whether the provisions of Section 50 are
mandatory or directory, but, hold that failure to
inform the concerned person of his right as
emanating from Sub-section (1) of Section 50, may
render the recovery of the contraband suspect and
the conviction and sentence of an accused bad and
unsustainable in law;
(7) That an illicit article seized from the person of
an accused during search conducted in violation of
the safeguards provided in Section 50 of the Act
cannot be used as evidence of proof of unlawful
possession of the contraband on the accused though
any other material recovered during that search may
be relied upon by the prosecution, in other
proceedings, against an accused, notwithstanding
the recovery of that material during an illegal
search.”
7. On account of divergence of opinion between the two
decisions of this court with regard to the dictum laid down by
the Constitution Bench in Baldev Singh, another
7Constitution Bench in Vijaysingh Chandubha Jadeja v.
State of Gujarat
2
considered the question whether Section 50
of the NDPS Act casts a duty on the empowered officer to
inform the suspect of his right to be searched in the presence
of a gazetted officer or a Magistrate, if he so desires or whether
a mere enquiry by the said officer as to whether the suspect
would like to be searched in the presence of a Magistrate or a
gazetted officer can be said to be due compliance with the
mandate of the said section. The Constitution Bench held
that although Baldev Singh did not decide in absolute terms
the question whether or not Section 50 of the NDPS Act was
directory or mandatory yet it was held that provisions of subsection (1) of Section 50 makes it imperative for the
empowered officer to inform the person concerned about the
existence of his right that if he so requires, he shall be
searched before a gazetted officer or a Magistrate; failure to
inform the suspect about the existence of his said right would
cause prejudice to him, and in case he so opts, failure to
conduct his search before a gazetted officer or a Magistrate,
2
(2011) 1 SCC 609
8may not vitiate the trial but would render the recovery of the
illicit article suspect and vitiate the conviction and sentence of
an accused, where the conviction has been recorded only on
the basis of the possession of the illicit article, recovered from
the person during a search conducted in violation of the
provisions of Section 50 of the NDPS Act. The Constitution
Bench noted that in Baldev Singh, it was clarified that it was
not necessary that the information required to be given under
Section 50 should be in a prescribed form or in writing but it
was mandatory that the suspect was made aware of the
existence of his right to be searched before a gazetted officer or
a Magistrate, if so required by him. The Constitution Bench
reiterated the principles laid down by this court in Baldev
Singh and added that the concept of substantial compliance
with the requirement of Section 50 of the NDPS Act is neither
borne out from the language of Section 50(1) nor it is in
consonance with the dictum laid down in Baldev Singh.
Thus, it is no longer in dispute that strict compliance with the
provisions of Section 50(1) of the NDPS Act is necessary. We
need to see whether evidence adduced in this case establishes
9that there was strict compliance of Section 50(1) of the NDPS
Act.
8. PW-1 PC Shaik Khasim, who was, at the relevant time,
attached to the Tenali-III Town Police Station had
apprehended the appellant, A1 and A2 on 5/1/2001. He
stated that on 5/1/2001 at 6.15 p.m., Circle Inspector of
Police took him in a jeep along with other police personnel to
Chenchupeta Railway Over Bridge. They saw three persons
sitting under the bridge. On seeing them, the said three
persons started running away. They apprehended them and
brought them to the Circle Inspector of Police. According to
him, the appellant, A1 and A2 confessed that they were having
Ganja packets in their pockets. He has further stated that the
Circle Inspector of Police asked them whether they wanted any
other gazetted officer for their search and seizure in addition
to him to which they replied that they did not want any other
gazetted officer and the checking by the Circle Inspector of
Police was sufficient for them. Thereafter, the Circle Inspector
of Police checked their pockets and recovered Ganja packets.
1In the cross-examination also, this witness has maintained the
same story.
9. PW-2 SI Nageswara Rao was, at the relevant time,
working as Sub-Inspector of Police at Tanali-III Town Police
Station. He was in the police party which apprehended the
appellant, A1 and A2. He has corroborated PW-1 PC Shaik
Khasim as regards the apprehension of the appellant, A1 and
A2. He has stated that before conducting the search, the
Circle Inspector of Police asked the appellant, A1 and A2
“about the intention to have another gazetted officer and they
replied that they do not want any other gazetted officer for
their search and seizure”. According to this witness,
thereafter, the search was conducted and Ganja packets were
recovered from their possession. From the evidence of PW-1
and PW-2, it is clear that the appellant, A1 and A2 were not
communicated their right to have search conducted in the
presence of a Magistrate or a gazetted officer.
110. At the relevant time, PW-3 CI Koteswara Rao was
working as Inspector of Police. It is this witness who had
received information about the illegal sale of Ganja at Koneru
Bazar. On receiving the information, he proceeded to Koneru
Bazar along with PW-1, PW-2 and another police constable.
He has corroborated PW-1 and PW-2 as regards the
apprehension of the appellant, A1 and A2. He has stated that
the appellant, A1 and A2 revealed their names and identity.
According to him, A1 produced packets containing Ganja.
Then he told him that if he wanted another gazetted officer, he
will bring him. So far as A2 and the appellant are concerned,
he has stated that they produced packets containing Ganja.
Thereafter, he revealed to them that they have a right to have
another gazetted officer in addition to him to which they
replied that his presence was sufficient. PW-3 has thus come
out with a new story viz. the appellant, A1 and A2 took out the
Ganja packets from their pockets and, thereafter, he told the
appellant, A1 and A2 that they had a right to have another
gazetted officer in addition to him. This story that the accused
themselves took out the Ganja packets from their pockets
1runs contrary to the version of PW-1 and PW-2 and, therefore,
it does not inspire confidence. If the accused voluntarily took
out Ganja packets, there was no question of conducting
search in the presence of a gazetted officer or a Magistrate.
But, assuming that this right can be communicated to a
suspect after the seizure and assuming the evidence of this
witness to be true, it still does not indicate that the
requirement of Section 50(1) of the NDPS Act was fulfilled.
There is no clear communication to the accused that they had
a right to be searched in the presence of a gazetted officer or a
Magistrate. As we have already noted, the concept of
substantial compliance cannot be read into the provisions of
Section 50(1) of the NDPS Act. We, therefore, have no
hesitation in concluding that in this case, there is a breach of
Section 50(1) of the NDPS Act. Since the conviction of the
appellant is solely based on possession of Ganja recovered
from him, it will have to be set aside.
11. A1 and A2 are not before us. However, the conclusion
drawn by us applies to their case as well. This court in Ashok
1 @ Dangra Jaiswal v. State of Madhya Pradesh
3
, dealt
with a somewhat similar fact situation. Out of the three
accused convicted under Sections 8(c) and 20(b)(i) of the NDPS
Act, only one accused had appealed to this court. The other
two were in jail. This court set aside the conviction and
sentence of the appellant therein and observed that the lapses
which had weighed with it for setting aside the conviction of
the appellant therein apply equally to the case of the accused
who had not appealed and, therefore, it would be unjust to let
them rot in jail even while allowing the appeal preferred by the
appellant therein. We are respectfully inclined to follow the
same course. In the circumstances, the impugned judgment
and order convicting and sentencing the appellant, A1-
Myla Rambabu and A2-Myla Muralikrishna is quashed and
set aside. The appellant, A1-Myla Rambabu and A2-Myla
Muralikrishna are acquitted of the charge under Section 8(c)
read with Section 20(b)(i) of the NDPS Act.
12. The appeal is disposed of in the aforestated terms.
3
2011 (4) SCALE 273
1……………………………………………..J.
(AFTAB ALAM)
……………………………………………..J.
(RANJANA PRAKASH DESAI)
NEW DELHI,
APRIL 04, 2012.
1
